In prescribing a treatment and carrying it out on false pretences, Barry may be liable for charges under section 47 and 20 of the Offences Against the Person Act 1861. In pretending to be a qualified doctor, and in examining the man adds further complications to the scenario, as it identifies some mens rea was present. (a) Consider whether Barry might be liable if charged under section 47 Offences Against the Person Act 1861
Assault and battery are common-law offences, but the more serious offences against the person are contained in the Offences Against the Person Act 1861 (OAPA). Section 47 of the OAPA states it is an offence, punishable with imprisonment for a term not exceeding five years for a person to assault another thereby 'occasioning actual bodily harm'. The actus reus1 defines the actual bodily harm as the victim suffering from some injury.
The injury need not be serious or life threatening to be liable under as bruising or abrasions is enough. Actual bodily harm (ABH) also includes psychiatric injuries such as neurotic disorders, which affect the central nervous system, however in court, expert evidence is needed to prove causation despite the victim being able to give evidence of the symptoms of psychiatric injury. In this scenario, Barry has performed the actus reus, as he knowingly performed the laser treatment on Peter. Actus reus can be by an act, an omission or a state of affairs, and here Barry has performed an act.
The mens rea2 is the mens rea (MR) for technical assault or battery. The mens rea of assault is an intention to cause the victim to apprehend immediate and unlawful violence or recklessness whether such apprehension is actually caused or not. The mens rea of battery is an intention to apply force to the body of another or recklessness whether force is so applied. There are only 3 types of MR. These are Intention, Recklessness (subjective/objective) and Gross negligence Intention can be direct i. e.
the result is D's desire or purpose, or oblique, where D is 'virtually certain' his act or omission would lead to the result required by the crime e. g. death in a homicide case. R v Cunningham 1957 provides the test for subjective recklessness i. e. here D must be aware of a risk (of the consequence) but nonetheless goes ahead and takes the risk – used for most forms of assault. R v Caldwell 1982 provides the test for objective recklessness, here D creates and takes an 'obvious' risk i. e. one that a reasonable person would see.
It is the MR for criminal damage and it only requires that a reasonable person would see a risk of the harm, the defendant need not do so. Manslaughter can be committed through gross negligence. It could occur where, for example, a ferry captain is negligent and some of his passengers are killed, or a surgeon is negligent and a patient dies. And as Barry is taking the responsibility of a qualified medic and pretending to be a doctor, he would have to face the consequences, which a doctor would normally – gross negligence, as he has caused undue harm to Peter through pain, which lasted 2 months.
The House of Lords held that in order to prove gross negligent manslaughter there must be a risk of death, a duty of care, a breach of that duty and gross negligence as regards that breach, which must be sufficient to justify criminal liability. Transferred Malice can exist whereby the mens rea can be transferred from the intended victim to the actual victim. 3 But it must be noted that with this, the AR and MR must be for the same crime e. g.
A throws a brick at a window and it misses and harms someone, you can't transfer MR from criminal damage to assault, it can't therefore be a s18 assault but could be s20 as A was probably reckless in the first place! It is also essential that AR and MR must coincide – Fagan v Metropolitan Police Commissioner 1969. The relevant cases of authority on ABH are as follows, in Chan Fook  the victim claimed he felt abused, humiliated and frightened, although the accused was convicted of assault occasioning ABH, the Court of Appeal said that psychiatric injury was part of ABH, but emotions such as fear, distress and panic were not.
The conviction was quashed, as there was no evidence from experts to determine that psychiatric injury had actually occurred or not. In Roberts  the defendant had assaulted a victim who was a passenger is his car, in fear she jumped out and was injured. Thus he was convicted of ABH as it was decided that the victim's actions were a natural consequence of the appellant's actions.
R v Ireland  charged the defendant with assault occasioning ABH, as even though he had not physically attacked anyone his silence made his victims fear the risk of immediate personal violence. Also it was decided that his purpose in making those calls was as malicious as it was deliberate. Miller  showed ABH included any hurt or injury, which interferes with the health or comfort of the victim however as divorce petitions had no effect in law the defendant could not be guilty of raping his wife at that time.